RICHARD F. SHEA vs. BOARD OF ALDERMEN OF CHICOPEE & another.

RICHARD F. SHEA vs. BOARD OF ALDERMEN OF CHICOPEE & another.

13 Mass. App. Ct. 1046

April 22, 1982

The plaintiff's application for a special permit under

Page 1047

Section 18/II/5 of the zoning ordinance is deemed to have been granted by operation of law under G. L. c. 40A, Section 9 (as appearing in St. 1975, c. 808, Section 3), because the board of aldermen, acting as the special permit granting authority under the ordinance (G. L. c. 40A, Sections 1A [inserted by St. 1977, c. 829, Section 3A] and 9), failed to render or file with the city clerk within ninety days of either of the public hearings on the application (compare Building Inspector of Attleboro v. Attleboro Landfill, Inc., 384 Mass. 109 , 110-111, 112, 114 [1981]) a "decision" of the type contemplated by G. L. c. 40A, Sections 11 (as most recently amended by St. 1979, c. 117), 15 (as appearing in St. 1975, c. 808, Section 3) and 17 (as most recently amended by St. 1978, c. 478, Section 32). See Gaunt v. Board of Appeals of Methuen, 327 Mass. 380 , 381-382 (1951); Spaulding v. Board of Appeals of Leicester, 334 Mass. 688 , 690-692 (1956); Opie v. Board of Appeals of Groton, 349 Mass. 730 , 733 (1965); Richardson v. Zoning Bd. of Appeals of Framingham, 351 Mass. 375 , 377 (1966); Lane v. Selectmen of Great Barrington, 352 Mass. 523 , 526-527 (1967); Shuman v. Aldermen of Newton, 361 Mass. 758 , 762-763, 764-765 (1972). See also Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass. App. Ct. 284 , 293-296 (1980). The judgment is to be modified by striking therefrom the words "City Clerk" and substituting in place thereof the words "The board of aldermen" and, as so modified, is affirmed.

So ordered.